PUNISHMENT FOR NON-MARITAL SEX IN ISLAM

Sharia law as applied in some Muslim countries

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Overview:

Some versions of Sharia law require that married or divorce persons
found guilty of Zina (adultery) be executed by stoning. Countries which
are predominately Muslim or which
have a large minority of Muslims vary greatly in their treatment of people found
guilty of this crime. According to Amnesty International:

Azerbaijan,
Bulgaria, Djibouti, Macedonia, Mozambique, and Turkmenistan have formally
abandoned execution as the penalty for all crimes, including adultery and
other sex "crimes."

Albania, Bosnia, the Russian Federation, and Turkey still retain the death
penalty on the books, but do not perform it in practice. Both the Russian
Federation and Turkey are expected to formally abandon it in the near
future.

Saudi Arabia, the United Arab Emirates, the Sudan, and some of the northern states of Nigeria practice a
very strict form of Sharia law. So do the states controlled by
the Parti Islam SeMalaysia (PAS) party in Malaysia. 1

Few Muslim countries still sentence people to death by stoning. "Two people were stoned to death in Iran last year. A man was
stoned for raping and killing his daughter in 2000 in Yemen. In Afghanistan, under the Taliban, adulterous couples were often killed
together." 13

The Qur'an and Sharia Law:

Sharia law is derived both from:

The teachings of the Mulsim holy book, the Qur'an, which is
believed to be the Word of God, and

From Sunna, the
practices of the prophet Muhammad.

The term "Sharia" literally means "the
path to a watering hole." "Sharia is a religious code for living,
in the same way that the Bible offers a moral system for Christians."
2

There are multiple forms of Sharia laws. For example, the Maliki Law
School accepts evidence of pregnancy as proof that an unmarried woman has
either committed
adultery or been raped. "The other schools, namely Shafii, Hanbali, Hanafi and even
the Shia do not recognize evidence of pregnancy as proof of Zina
[Adultery]." 3

"In the 19th century, many Muslim countries came under the control
or influence of Western colonial powers. As a result, Western-style laws,
courts, and punishments began to appear within the Sharia. Some countries
like Turkey totally abandoned the Sharia and adopted new law codes based
on European systems...Modern legislation along with Muslim legal scholars
who are attempting to relate the will of Allah to the 20th century have
reopened the door to interpreting the Sharia. This has happened even in
highly traditional Saudi Arabia, where Islam began....Since 1980, some
countries with fundamentalist Islamic regimes like Iran have attempted to
reverse the trend of westernization and return to the classic Sharia."
4

Within Sharia law, there are a group of "Hadd" offenses such as
pre-marital sexual
intercourse, sex by divorced persons, post-marital sex, adultery, false accusation of unlawful intercourse,
drinking alcohol, theft, and highway robbery. Hadd sexual offenses carry a
sentence of stoning to death or severe flogging. An eyewitness account of
Soraya M, a woman executed by stoning, can be read on an anti-Iranian web
site. Caution: do not read this if you have a weak stomach; it is quite
graphic. 5

Sharia law has been adopted in various forms by many countries,
ranging from a strict interpretation in Saudi Arabia and northern states
of Nigeria, to a relatively liberal interpretation in much of Malaysia.
2

Chapter 24 of Islam's holy book, the Qur'an, explicitly instructs
believers to whip those found guilty of adultery. A leading Muslim
scholar, Maulana Muhammad Ali noted that "stoning to death was never
contemplated by Islam as a punishment for adultery." Roman
Catholic Archbishop of Lagos, Dr. Anthony Olubunmi Okogie, said that the "official
text of the Qur'an only sanctions a punishment of so many lashes for such
an offence not stoning to death...[the] punishment of stoning was
introduced later by Omar, the second Calif for reasons best known to him."
6 Many Muslim scholars
and judges agree that the Qur'an does not refer to executions by stoning.
"...the Islamic legal scholar Tarik Abdul-Rahman states they are part of
the Hadith (collections of sayings and acts of the Prophet), and go back
to the Pentateuch (first five books of Hebrew Scripture)."7 Execution by stoning is thus in harmony with the 613 laws which make
up the Mosaic code in the Bible.

Massoud Shadjareh, of the London-based Islamic Human Rights
Commission, opposes stoning sentences. He urges other Muslim leaders
to speak out against them. Otherwise, he fears that what he calls an
inhumane brand of Islamic law will take root in Nigeria. Shadjareh said:
"Shariah has been translated to be harsh, extreme treatment — it isn't."
He argues that amputations and stonings are supposed to be used only as a
last resort, and only within those Islamic societies that have eliminated
poverty and corruption. Neither condition has yet been achieved, either in
Nigeria or in other countries where stoning is practiced. 13

Some interesting details associated with Sharia law:

Under the form of Sharia law that is practiced in Sudan, "the
stones thrown during the execution should not be so large that the
offender dies after a few strikes, nor so small as to fail to cause
serious injury." 7

A conviction normally requires a minimum of four witnesses who
directly observed the sexual activity at the same time, or a
freely-given confession by the defendant. However, as
noted below, the former requirement is not always followed. If the woman is
pregnant and either unmarried or divorced, she may be assumed to be guilty,
if she is tried under the conservative Maliki Law School form of Sharia. 8

Under "an obscure tenet of
Islamic law,...an embryo can 'sleep' for years before swelling a woman's
belly." 9 Thus, it is believed that an interval of up to seven years can pass between
conception and birth. This means that a woman who is pregnant and has been
divorced for fewer than seven years can theoretically claim that the
father of the fetus
is her former husband.

Problems sometimes arise when an unmarried or divorced woman becomes
pregnant as a result of a rape. Some Sharia courts do not recognize DNA
testing or the evaluation of possible paternity by other blood tests. The
case often results in a "she-said, he said" situation. Sometimes,
the alleged rapist is found not-guilty because his involvement cannot be
proven. But if an unmarried woman becomes pregnant, she can be assumed to
be guilty of
extra-marital sexual activity and can be executed. If she claims that she
was raped and is unable to prove her case, then she will probably receive severe punishment, because she would be assumed guilty of making a false accusation.

Sharia law is only applicable to Muslims. Christians and other
non-Muslims are supposed to
be exempt from the provisions of the law -- a provision that is ignored
in the Sudan.

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Sharia law in Nigeria:

Nigeria is Africa's most populous country with a population of 110
million, spread out over 250 ethnic groups in 36 states. The residents in the
northern states are predominately Muslim, while those in the south are
mainly Christian. Nigeria has
received a lot of news coverage in recent years
because of the strict Maliki interpretation of Sharia (Islamic) law by courts in
some of the northern states. Introduction of the "Sharia
Penal Codes" and "Sharia Codes of Criminal Procedure"
first came into
force in the state of Zamfara on 2000-FEB-27. The states of Sokoto, Kano,
Katsina, Jigawa, Borno, Kaduna followed suit between 2000-MAY and
2001-FEB. The states of Gombe, Kebbi, Niger and Yobe adopted Sharia
law later in 2001. This triggered horrendous levels of
inter-religious conflict and mass murder. Over 2,000
people are believed to have died in inter-religious rioting in the Kaduna
state alone during 2000-FEB. A further 500 were killed in the state of Jos during
2001-SEP. In violation of
the country's constitution, and of the UN Convention Against Torture
which the federal government signed in 2001-JUN, some northern Nigerian courts have imposed
beheadings, stoning and amputations for what are considered relatively minor crimes
elsewhere in the world. Executions have been occasionally performed as
punishment for behavior that is not even considered criminal in other
jurisdictions.

During 2001 and 2002, there were a flurry of persecutions that resulted
in sentences of death by stoning. Nigerian fundamentalist Islamic groups
are pressuring the state governments to prove their commitment to Sharia
law by carrying out the executions.

Olusegun Obasanjo, a Christian, is the president of Nigeria. He
received significant support from Muslims in the north during the last election. He said that "sharia is not a new thing and
it's not a thing to be afraid of." His main response to sharia
law was to try to persuade northern
courts to make their sentences more lenient.

Some commentators have suggested that the harsh sentences under Sharia
law are being imposed as "an act of defiance by northern leaders
against President ... Obasanjo, whom they accuse of neglect, and against
the south as a whole, where Nigeria's economic power lies. [Some]
southerners accuse the rulers of the mainly Muslim north of manipulating
Islam to divide voters along religious lines — and to distract the people
from their state governments' poor performance since military rule ended
in Nigeria three years ago." 13

In 2002-MAR, the federal
government ruled that sharia law in the north of the country was was
illegal under Nigeria's constitution. Justice minister, Godwin Agabi,
wrote that "a Muslim should not be
subjected to a punishment more severe than would be imposed on other
Nigerians for the same offence". He said that the country "cannot
be indifferent" to international pressure over recent court sentences.
2

Dalhat S. Abubakar, chief registrar for the Katsina Shariah Court of
Appeal, questioned whether Islamic law is being applied correctly in
cases of sexual activity outside of marriage. Referring to stoning
sentences, he said: "Under normal circumstances they are not supposed
to do that. Adultery is not an offense against the state."

Sharia law is not supposed to apply to Christians and other
non-Muslims. In theory, the Penal Code for Northern Nigeria remains in effect
for non-Muslims. However, Zamfara state requires its female employees to meet
Muslim standards of dress regardless of religion. Christians and women of
other non-Muslim faiths cannot ride motorcycle taxis or share mass transportation with men.
Smaller buses are provided for women, but they are few in number and run
infrequently. 9

Considerable opposition to Sharia law has come from outside of Nigeria:

According to Human Rights Watch, "previous trials in Sharia
courts in several northern states of Nigeria have been characterized by an
absence of due [legal] process. Defendants do not always have legal
representation; they are often ill informed about procedures and about
their rights. Judges and other court officials frequently lack legal
training." 10

Baobab, a Nigerian based NGO promoting women's rights, and
Amnesty International state that "the current practice and many
regulations in the new Sharia penal Codes and Sharia Codes of Criminal
procedure violate many international human rights instruments ratified by
Nigeria, including the 'Convention for the Elimination of All Forms of
Discrimination Against Women,' the 'Convention Against Torture and other
Cruel, Inhuman or Degrading Treatment' and the 'International Covenant on
Civil and Political Rights.' " 11

The European Parliament passed a resolution on 2002-APR-8 titled
"Urgency Resolution on Human Rights Situation in Nigeria." The
resolution: "Condemns all forms of religious intolerance and expresses
its concern that the fundamentalist interpretation of the Sharia law in 12
northern Nigerian states is contrary to the respect for basic human rights
even under moderate Islamic legal interpretations of the Koran and asks
the Sharia states in northern Nigeria to amend these laws..."
12

The "Country Reports on Human Rights Practices - 2001,"
prepared by Bureau of Democracy, Human Rights, and Labor of the
U.S. State Department states: "The implementation of an expanded version
of Sharia law in 12 northern states continued, which challenged
constitutional protections for religious freedom and occasionally sparked
ethno-religious violence." 10

"BAOBAB for Women's Human Rights and Amnesty International Joint statement
on the implementation of new Sharia-based penal codes in northern Nigeria,"
2002-MAR-25, at:
http://web.amnesty.org/ai.nsf/Index/